Battered by the System, The Australian, 3-4 June 2000.

Battered by the system

The Weekend Australian - Focus 3-4 June 2000

Nobody believed 'Frank' when he tried to protect his son from

bureaucratic bungling. John Stapleton reports that, nearly 20 years

on, Frank has been proved right, even though he lost in court.

[Picture: Father and son: "Frank" and "James"]

The boy was eight weeks old when his father called welfare authorities

and pleaded with them to take his son into foster case. He alleged

that the mother was being violent towards the child, throwing him

against walls and trying to smother him. The authorities ignored him,

as they did for years to come, but the father persevered.

Twenty years, 550 days in court and tens of millions of dollars of

public funds later, the matter which has just run across the civil,

criminal and family law jurisdictions, reached its final chapter this

week.

Last year the Office of the Director of Public Prosecutions, satisfied

there was a prima-facie case, laid charges against the mother for

tying her son in a cot with a rope, striking him in the face, throwing

him against a wall and "causing him actual bodily harm", events

alleged to have occurred in 1981-82.

But earlier this week, in a judgment highly critical of earlier police

inaction, Sydney's Downing Centre Local Court issued a permanent stay

on proceedings, primarily due to the time that has elapsed since the

alleged offences occurred.

Magistrate Hugh Dillon said the disappearance of police records raised

the suspicion of a cover-up. But he said the "appalling" treatment the

Police Service meted out to the father did not detract from the issue

of the mother facing a possible abuse of process because of the

20-year delay.

One of the sad ironies of the case is that, although the father does

not see it this way, in many of his claims of judicial, police and

political inaction as well as inappropriate behaviour by the NSW

Department of Community Services have been vindicated in a series of

court judgments. But nobody has been found guilty, no compensation has

been paid.

End of the road

The following are excerpts from this week's

judgment in the Local Court of NSW by

magistrate Hugh Dillon, who granted a

permanent stay on the case against the m

other of "James", which alleged she

bashed and tied up her son in 1981-82. The

real names of those involved in the case have

been suppressed by the court.

"There is no explanation before the court as

to why or how the investigation stopped once

the father had set it in train. No one has ever

explained to the father what happened during

the investigation or what decisions, if any,

were made by those originally in charge of it.

the fact that police records, which would,

presumably, explain these things, have

disappeared  raises a suspicion that police

officers have been involved in covering up

their own negligence or the negligence of

colleagues. Beyond this,  we can merely

speculate.

"I feel considerable sympathy for the father

... it is appalling that it has taken him almost

20 years to get the Police Service to take

action on evidence [that] it has had for most

of that time.

"A reasonable and right-minded person

might have his or her confidence in the justice

system undermined because the

father has been treated so badly.

"Yet is it now just ... to continue the

proceedings because the father was unjustly

or unreasonably treated ... for many years?

This is ... one of those rare or exceptional

cases where the delay in proceedings has

been so excessive that the proceedings constitute

an abuse of process.

"These proceedings are permanently stayed."

The long history of the case means it offers a time-tunnel view of the

behaviour of bureaucracies in the face of an outraged and persistent

litigant. Its resolution comes as sex and family issues are attracting

worldwide media attention, with focus on the high suicide rates of

separated men and the behaviour of family courts, child protection

authorities and court-appointed psychiatrists.

An expert on female abuse of children, Dr. Malcolm George of St

Bartholomew's Hospital in London, says it if "par for the course",

where the mother is the alleged abuser, for institutions to spend

large amounts of money defending their decisions,, based on an

ideology that "denies that women can be violent and abusive".

It was nine years ago that The Weekend Australian broke the story of

"James" and his father "Frank" on its front page, illustrating one of

the most under-reported and under discussed crimes in Australia today:

physical and sexual abuse of children by women.

[Illustration: A copy of the Weekend Australian April 6 1991 story

"Why it took years for Frank to save his son".]

Although Australian and international research clearly indicates that

children are most at risk from their mother, followed by their step

father and live-in boyfriends, almost a decade on crimes of this type

remain significantly under-reported and under-researched.

'I get flashbacks: a

smell, an idea can

trigger them'

'James'

During his early years, Frank - the family's real names have been

suppressed by the courts - made hundred of calls and applications to

police, welfare organisations, the NSW Department of Community

Services, parliamentarians and the Family Court. But it was not until

1984, when the child was four years old, that at least some members of

the department appear to have begun taking the accusations seriously.

A report by an independent clinical psychologist gave a graphic

account of James attempting to have oral sex with her - behaviour

considered to have been acquired from a woman. A departmental

psychologist and a child protection worker then interviewed the mother

and the child. They concluded that James was an "emotionally deprived

little boy who has been sexually abused and has been exposed to adult

sexual behaviour".

For almost two years from this date, the father was prevented from

seeing his son through Family Court orders, actions by departmental

officers and recommendations by Sydney psychiatrist Dr Brent Waters,

who had been a favourite of DOCS, the Family Court and Legal Aid over

many years.

Waters recommended custody be with the mother and that the father be

denied access. The Citizens Commission on Human Rights, which

campaigned for the Chelmsford deep sleep inquiry in the 1980s, has

helped prepare a number of complaints against Waters in the past year.

Waters has declined to comment.

The journal Psychiatry, Psychology and the Law's editor-in-chief Dr

Ian Freckleton says there is a long  and disappointing history of

bureaucracies responsible for the welfare of child not acknowledging

errors.

"A particular difficulty exists in relation to the independence of

advise," he says. "Welfare department often utilise services offered

by mental health professionals who interlink with the departments in a

complex of advisory, consultant and expert roles, all of which can be

well paid and career-enhancing."

Repeated attempts by Frank in the early 80s to gain custody failed. In

1986, James was bashed with a cricket bat. Frank Alleges the boy's

mother's then de facto husband was responsible. The man was never

questioned. A Children's Hospital report from the time reports

evidence of a recent severe beating "suggesting he had been held on

the face and struck". The report noted "extensive bruising ...

blue-black in colour" and records the six-year-old's long association

with the hospital for similar problems.

In desperation, the father finally gained full custody of his son by

locating the home of the then federal attorney-general Lionel Bowen.

Braving dogs, he knocked on the door. Bowen was not at home but his

wife answered the door and listened to Frank's story. James has not

seen his mother since.

The Ten network;s footage of the child when he was 11 shows a quiet,

well-mannered boy asking: "Why was it me, why was it me that got

hurt?" He said his mother "should be put in jail for life, I just hate

her".

James, now 20, is on medication and rarely leaves the house. He has

consistently maintained for several years that he remembers

psychiatrist Waters saying: "Don't tell anyone about the naughty

things mummy's doing."

"I was so young," James recalls. "The main things that come across now

- I get flashbacks: a smell, and idea can trigger them. It is more a

sense of fear. I used to dream a lot, nightmares ... about my mother.

I was extremely scared of her. I remember certain episode and events

... when her husband beat me with a cricket bat ... I felt anger, but

more than anything, no I feel pity."

The obsessive campaign for justice by Frank has touched many of

Australia's best known people and has been mentioned in parliament 14

times. Among the judges who ruled against the father was Elizabeth

Evatt, a former chief justice of the Family Court and now a member of

the UN Human Rights Committee. Justice John Ellis, now a senior Family

Court judge, also ruled against Frank.

The dozens of politicians whom the father approached - unsuccessfully

- for help include Paul Keating, Gareth Evans, Neville Wran, NSW

Minister for Women Faye Lo Po' and NSW Police Minister Paul Whelan.

DOCS officers in the early 1980s accused the father of being violent

and threatening a number of solicitors. None of these accusations was

proved.

After press coverage his local member, the then shadow minister for

industrial relations John Howard, called for an independent inquiry.

In 1992 he told parliament: "I have satisfied myself, from very

lengthy interviews with my constituent and from an exhaustive

examination of a huge file, that the complaints that he has brought to

me about the conduct of officers of the then Youth and Community

Services Commission in NSW are justified". Independent Ted Mack also

claimed welfare officers showed "prejudice and bias ... against the

father when he made efforts to protect his child".

Two decades of discord

1978: "Frank" and his wife marry in Syria, arrive in Australia.

1979: Wife is pregnant, admitted to psychiatric hospital.

1980: "Janes" is born underweight. Eight weeks later, Frank makes his

first calls to welfare officers and police.

1980-82: Frank alleges neglect and abuse by his wife, including

hitting, burning and throwing the child against a wall. Makes hundreds

of phone calls and visits to authorities.

1982: Wife moves to Marrickville Women's Refuge. Residents also allege

abuse, including the boy being tied to a cot. Alleged sexual abuse

begins.

1983: Child is living with his mother and another alleged female

perpetrator. Frank makes repeated application to what was then the

Department of Youth and Community Services, the Family court, churches

and other organisations for the child to be removed.

1984: Child protection workers and psychologists confirm sexual abuse

and neglect. The child provides detailed statement of alleged oral

sex. The department, Sydney child psychiatrist Dr Brent Waters and the

child's Legal Aid solicitor recommend the child remains with his

mother. In May, Frank refuses to return the child. Police on

instruction from Family Court return the child to his mother. Frank

does not see the child for two years.

1985: Frank constantly makes requests to authorities to remove the

child to safety; he approaches the home of the then federal

attorney-general Lionel Bowen after 68 trips to Canberra seeking help

from politicians.

1986: The child is badly bashed with cricket and becomes a ward of the state.

July: Frank gains full custody.

1991-92: The Weekend Australian breaks the story of the child abuse

bungle. John Howard calls for an inquiry.

1993: 5000 people sign a petition to parliament demanding an inquiry.

The Independent Commission Against Corruption decides not to

investigate. Frank begins proceedings in the NSW Supreme Court.

1997: The trial for damages begins in NSW Supreme Court. After three

weeks, Frank attempts to sack Alec Shand QC from the case. Instead,

Frank is removed as "tutor".

1999: Judgment absolves a string of officers from what is now the

Department of Community Services and Waters of wrongdoing, but finds

the department in breach of duty of care. The NSW Department of Public

Prosecutions charges the mother with physical abuse of the child.

2000: The NSW Supreme Court find that, though DOCS was negligent, the

link between negligence and damage to the child cannot be established,

therefore compensation is not paid.

May 30: Local Court magistrate Hugh Dillon finds the NSW Police

Service Performance in the case was "appalling", but grants permanent

stay of the case against the mother because of passage of time.

The weekend Australian concluded in the early 90s that documents

unearthed under freedom-of-information legislation showed government

officers had made false claims that the father was an arsonist.

The Ethnic Affairs Commission also expressed concerns.

During the past eight years, Frank has sought compensation via the NSW

Supreme Court. Last year, after 64 days in court and a transcript

stretching to 3000 pages and 330 exhibits, the court handed down a

judgment absolving a string of DOCS officers of bias and negligence.

'I believe every

child should be

given every right to

live without abuse

and pain'

'FRANK'

However, the court did find the department I'm "in breach of its duty

of care owed to the plaintiff" in failing to fully investigate

affidavits that alleged abuse of the child, filed by a women who had

lived at the refuge where James and his mother were staying.

The court also found the department failed to attend promptly on

notification of a child at risk to provide material and give clear

written instructions to Waters.

Psychiatric reports link the son's present problems with his early

sexual abuse. However, in a subsequent ruling last April, the NSW

Supreme Court found there was

absent an essential link in the chain of causation" between breaches

of duty of care by DOCS ann conditions now suffered by the son.

Justice Timothy Studdert was unable to conclude that due investigation

"would have led in the exercise of reasonable care to the avoidance of

... exposure to sexual abuse".

Frank believes his son needs treatment and the ruling leaves him

without vital help. His main focus now is his outrage at the way the

NSW Supreme Court dealt with the case.

He originally acted as "tutor" or guardian, for his son, the

plaintiff. Well known Sydney silk Alec Shand QC took on the case. In

the end, the father was removed from the case after allegations that

his emotional involvement went against his son's best interests.

Frank may very well not have helped his case through the years by

calling everyone who would not help him, including judges, politicians

and police, "evil, disgusting, protectors of paedophilia" and so on.

Transcripts from the Supreme Court show much legal huffing and puffing

over the man's "scurrilous" attacks.

Frank alleged in a complaint to the Legal Services Commission that

Shand, once granted legal aid "hijacked" the case. He alleges that

Shand deliberately concealed evidence from the court and failed to

cross examine witnesses. The commission found no wrongdoings on the

part of Shand.

Frank believes that the system, including the judiciary and

politicians generally, has acted to protect the interconnecting webs

of Legal Aid, DOCS and the Family Court. He says that his case is not

just a failure of the system" "I am saying the whole system is

immoral, inhuman.

"The abuse of my son was known to the authorities from when my son was

weeks old to when he was 61/2. Instead of the system protecting my son

from horror abuse, they left my son in a dangerous situation and then

proceeded to protect the people who were abusing him.

"I believe one thing" every child should be given the right to live

without abuse and pain and suffering."

Although Frank has been dismissed by members of the legal profession

as "paranoid" and "unpleasant", his is not that uncommon a view.

Whistleblowers Australia's national president Dr Jean Lennane says

DOCS, Legal Aid and the Family court "have very close connection -

incestuous you might say".

"What tends to happen is that the aggrieved party, the whistleblower

or litigant early on gets labelled as a troublemaker and mentally

unbalanced, unofficially or with the help of a hired-gun psychiatrist

or psychologist," says Lennane.

"Once that has happened, nobody in any part of the bureaucracy is

usually willing to examine the facts of the original complaint. You

find it constantly. The main point is the waste of public money.

The scars of what happened to the family in the early 80s are still

visible. James after struggling to concentrate at school, is at a

turning point, not sure where his life will lead.

His mother has remarried and has two other children.

Frank, a pensioner, is fearful that he will be hit with a cost order

for millions of dollars for his Supreme Court Action. His hope that

his case would help stop other children being abused and provide a

comfortable future for his son is in ashes.

He believes there are other fathers doing, as he did, everything they

can to protect their children and being frustrated in the process.

"There is no doubt it is still happening today," he says.

Statistical risks

Although there has been little Australian research, international

studies indicate that children are most at risk of abuse from their

mothers.

US

The US Government's 1997 report Child Maltreatment found 62.3 per cent

of perpetrators were women.

The Heritage Foundation Study, The Child Abuse Crisis, found that of

the approximately 2000 children killed each year, 55 per cent were

killed by mothers, 25.7 per cent by live-in boyfriends, 12.5 per cent

by stepfathers, and 6.8 per cent by biological fathers.

The 1995 report US National Incidence of Child Abuse and Neglect found

that where maltreatment led to death, 78 per cent of perpetrators were

female. Boys were four times more likely to be fatally abused and 24

per cent more likely to be seriously abused than girls.

UK

The book Broken Homes and Battered Children reports that the child of

a biological mother cohabiting with a man other than the natural

father is 33 times more likely to suffer serious abuse that a child

with married natural parents.

Australia

Although there is a contention over what constitutes a substantiation,

the latest statistics from the Australian Institute of Health and

Welfare, based on an amalgam of data from some states, suggests 31 per

cent of child abuse cases occur in natural families, 20 per cent in

step or blended families, 40 per cent in single-mother households and

5 per cent in single-father households.